Stanger v. Cato

• Decision Date: 19 March 1987
• Docket Number: No. 73079,73079
• Citation: 182 Ga.App. 498,356 S.E.2d 97
• Parties: STANGER et al. v. CATO.
• Court: Georgia Court of Appeals

Page 97

356 S.E.2d 97

182 Ga.App. 498

STANGER et al. v. CATO.

No. 73079.

Court of Appeals of Georgia.

March 19, 1987.

Rehearing Denied April 3, 1987.

Certiorari Denied May 7, 1987.

Kirby R. Moore, Macon, for appellants.

John C. Edwards, Macon, for appellee.

CARLEY, Judge.

While an invitee at appellee-defendant's business establishment, appellant-plaintiff Mrs. Stanger fell. The fall was allegedly caused by appellee's dog. Mrs. Stanger and her husband sued appellee for damages allegedly resulting from the fall. Appellee answered and subsequently moved for summary judgment. The trial court granted summary judgment in favor of appellee and appellants appeal.

Appellants urge that genuine issues of material fact remain as to appellee's liability under two legal theories. They rely upon OCGA § 51-2-7, which provided, at the time relevant to this case, as follows: "A person who owns or keeps a vicious or dangerous animal of any kind and who, by careless management or by allowing the animal to go at liberty, causes injury to another person who does not provoke the injury by his own act shall be liable in damages to the person so injured." "Proof that the owner of a dog either knew or should have known of the dog's propensity to do the particular act which caused injury to the complaining party is indispensable to recovery against the owner. [Cit.]" Fitzpatrick v. Henley, 154 Ga.App. 555-556, 269 S.E.2d 60 (1980). Construing the evidence of record most strongly in favor of appellants, there is absolutely no genuine issue of any material fact remaining upon which appellee's liability under OCGA § 51-2-7 could be predicated. To the extent that Carr v. Young, 120 Ga.App. 464, 170 S.E.2d 834 (1969) holds that the dog's breed and size and the fact of the dog's general restraint is evidence of the owner's knowledge of the dog's vicious or dangerous propensities, it is inconsistent with the correct rule. See McCree v. Burks, 129 Ga.App. 678, 200 S.E.2d 491 (1973); Wright v. Morris, 143 Ga.App. 571, 239 S.E.2d 225 (1977). Accordingly, Carr v. Young, supra, is overruled and summary judgment in favor of appellee was correctly granted as to this theory of recovery.

Appellants also rely upon OCGA § 51-3-1, which provides: "Where an owner or occupier of land, by express or implied invitation, induces or leads others to come upon his premises for any lawful purpose, he is liable in damages to such persons for injuries caused by his failure to exercise ordinary care in keeping the premises and approaches safe." With regard to any claim under OCGA § 51-3-1, there is absolutely no evidence of any superior knowledge upon which to base a finding of appellee's foreseeability of the incident which occurred. Clark v. Carla Gay Dress Co., 178 Ga.App. 157, 342 S.E.2d 468 (1986). Therefore, summary judgment was also correctly granted to appellee under this theory of recovery.

Judgment affirmed.

BIRDSONG, C.J., DEEN and BANKE, P.J., and SOGNIER and POPE, JJ., concur.

McMURRAY, P.J., and BENHAM and BEASLEY, JJ., dissent.

BEASLEY, Judge, dissenting.

I respectfully dissent that summary judgment was demanded as a matter of law in this case which involves Mrs. Stanger's being knocked to the ground by defendant's Doberman Pinscher dog, not yet a year old, while she was an invitee at Cato's plant nursery. It is not a dog bite case, nor is it a vicious dog case.

Appellants principally assert that summary judgment was improper because there was sufficient evidence to create an issue of fact as to whether the nursery owner anticipated or foresaw the possibility of customers being injured if his dog and an employee's dog were allowed out on the premises while customers were present; secondly, that the court incorrectly relied on OCGA § 51-2-7, the statute providing for the liability of an owner or keeper of a vicious or dangerous animal for injuries caused by the animal, rather than OCGA § 51-3-1, which states the duty of an owner or occupier of land to an invitee.

The trial court's order granting summary judgment does not specify the legal theory on which it relied, and the balance of the record is also silent in this regard.

Plaintiffs alleged in their complaint and also now argue that defendant was aware that when his Doberman Pinscher and another Doberman Pinscher kept on the property were allowed to freely roam the premises, they would become playful and pose a threat to the safety of invitees and further, that he failed to take reasonable precautions to protect invitees from dangers which were "easily foreseeable" and therefore breached his duty to exercise ordinary care in keeping the premises safe for Mrs. Stanger's use. In addition, the complaint alleged that defendant was negligent and caused injury to Mrs. Stanger "by keeping a vicious animal and by careless management." Since all "pleadings will be construed to serve the best interests of the pleader," Rodgers v. Ga. Tech Athletic Assn., 166 Ga.App. 156, 161(2)(b), 303 S.E.2d 467 (1983), the complaint sufficiently raised the possibility of recovery under either OCGA § 51-2-7 or OCGA § 51-3-1. Thus the propriety of summary judgment under both theories is at issue on appeal.

There is liability under OCGA § 51-2-7 for the animal's act " ' "only in the event the owner knows of its vicious or dangerous character. If he does not know this, he will not be liable for an injury which is not the usual and natural consequence to be anticipated from allowing an ordinary animal of that kind to go at large." [Emphasis supplied] [Cit.]' [Cits.] In order to constitute notice to an owner or keeper of an animal's vicious or dangerous nature, there should be an incident which would put a prudent man on notice to anticipate the event which occurred. [Cit.] ...

" 'Proof that the owner of a dog either knew or should have known of the dog's propensity to do the particular act which caused injury to the complaining party is indispensable to recovery against the owner. [Cit.]' [Cit.]" Marshall v. Person, 176 Ga.App. 542, 543, 336 S.E.2d 380 (1985).

Defendant denied that his dog had ever exhibited any...